Part 6Secret commissions

Part 6—Secret commissions 145—Interpretation benefit includes an indirect benefit; indirect benefit—a benefit given or offered by a person (A) to another person (B) is taken to be an indirect benefit to a third person (C) if it is given or offered with the intention of influencing C and C, knowing of A's intention, acquiesces in A's act; public agency means— (a) the police force; or (b) a department or administrative unit of the public service; or (c) any other agency or instrumentality of the State; or (d) a body that is subject to control or direction by a Minister, agency or instrumentality of the State; or (e) a body whose members, or a majority of whose members, are appointed by the Governor or a Minister, agency or instrumentality of the State; or (f) a local government body; or (g) a planning assessment panel; public officer means a member, officer or employee of a public agency. (2) A person, who works for a public agency by agreement between the person's employer and the public agency or an authority responsible for staffing the public agency, is to be regarded, for the purposes of this Part, as an employee of the public agency. Division 2—Unlawful bias in commercial relationships 146—Fiduciaries (1) For the purposes of this Part, a person is to be regarded as a fiduciary of another (the principal) if— (a) the person is an agent of the other (under an express or implied authority to act on behalf of the other); or (b) the person is an employee of the other; or (c) the person is a public officer and the other is the public agency of which the person is a member or for which the person acts; or (d) the person is a partner and the other is another partner in the same partnership; or (e) the person is an officer of a body corporate and the other is the body corporate; or (f) the person is a lawyer and the other is a client; or (g) the person is engaged on a commercial basis to provide advice or recommendations to the other on— (i) investment; or (ii) business management; or (iii) the sale or purchase of a business or real or personal property; or (h) the person is engaged on a commercial basis to provide advice or recommendations to the other on any other subject and the terms or circumstances of the engagement are such that the other (that is, the principal) is reasonably entitled to expect— (i) that the advice or recommendations will be disinterested; or (ii) that, if a possible conflict of interest exists, it will be disclosed. (2) A reference to a fiduciary extends to a person who is to become one. 147—Exercise of fiduciary functions A fiduciary exercises a fiduciary function if the fiduciary— (a) exercises or intentionally refrains from exercising a power or function in the affairs of the principal; or (b) gives or intentionally refrains from giving advice, or makes or intentionally refrains from making a recommendation, to the principal; or (c) exercises an influence that the fiduciary has because of the fiduciary's position as such over the principal or in the affairs of the principal. 148—Unlawful bias (1) A fiduciary exercises an unlawful bias if— (a) the fiduciary— (i) has received or expects to receive a benefit from a third party for exercising a fiduciary function in a particular way; and (ii) exercises a fiduciary function in the relevant way without appropriate disclosure of the benefit or expected benefit; and (b) the fiduciary's failure to make appropriate disclosure of the benefit or expected benefit is intentional or reckless. (2) A fiduciary makes appropriate disclosure of a benefit or expected benefit if the fiduciary discloses to the principal— (a) the nature and value (or approximate value) of the benefit; and (b) the identity of the third party from whom the benefit has been, or is to be, received. 149—Offence for fiduciary to exercise unlawful bias A fiduciary who exercises an unlawful bias is guilty of an offence. 150—Bribery (1) A person who bribes a fiduciary to exercise an unlawful bias is guilty of an offence. (2) A person bribes a fiduciary to exercise an unlawful bias if the person— (a) gives or offers to give a benefit intending that the fiduciary will, in return for the benefit, exercise a fiduciary function in a particular way; and (b) knows or believes that the fiduciary will not make an appropriate disclosure of the benefit or expected benefit to the principal or is reckless as to whether or not the fiduciary will make such a disclosure. (3) A fiduciary who accepts a bribe to exercise an unlawful bias is guilty of an offence. (4) A fiduciary accepts a bribe to exercise an unlawful bias if— (a) a person gives or offers to give a benefit intending that the fiduciary will, in return for the benefit, exercise a fiduciary function in a particular way; and (b) the fiduciary accepts the benefit or the offer— (i) intending not to disclose the benefit or expected benefit to the principal; or (ii) later forms the intention not to disclose it to the principal. (5) This section applies even though the relevant fiduciary relationship had not been formed when the benefit was given or offered if, at the relevant time, the fiduciary and the person who gave or offered to give the benefit anticipated the formation of the relevant fiduciary relationship or the formation of fiduciary relationships of the relevant kind. Division 3—Exclusion of defence 151—Exclusion of defence It is not a defence to a charge of an offence against this Part to establish that the provision or acceptance of benefits of the kind to which the charge relates is customary in a trade or business in which the fiduciary or the person giving or offering the benefit was engaged.